Justice Committee on May 2nd, 2017

[Mark Benton]

Criminal services tend to be paid on a block tariff level. You would get so much for a trial or so much for a half-day of trial. Partly, there's a commonality among them. They just tend to be slightly different business models.

Lawyers practising criminal law tend to be more used to that. Lawyers practising in the family area tend to be more used to billing by the hour. That would be the broad reason for it. It's not necessarily so in other legal aid plans, and other jurisdictions outside of Canada do it differently.

[Scott Duvall, NDP, Hamilton Mountain, ON]

If there's a cap on them—let's just say, in B.C.—what happens if the lawyer needs more time? What happens to the case?

[Mark Benton]

If there's money available in a given year, my managers will have discretion to grant additional resources. We're one of the plans that has a capped budget. We cannot run a deficit, so they run it that way.

Typically, what happens is that sometimes clients go without lawyers.

[Scott Duvall, NDP, Hamilton Mountain, ON]

One important question is this. As I understand it, the Legal Services Society spent $9 million in 2016 on family cases. This was down from $18.1 million in 2001.

[Mark Benton]

Yes.

[Scott Duvall, NDP, Hamilton Mountain, ON]

Why such a massive drop?

[Mark Benton]

The provincial government decided to no longer fund traditional models of family legal aid and instead to fund only emergency levels of service.

[Scott Duvall, NDP, Hamilton Mountain, ON]

It's a political decision.

[Mark Benton]

That was a political decision.

The literature on legal aid funding indicates that it's typically a political decision. It's the only way they can explain why things vary so much. Even within Canada, the variation in per capita funding for legal aid is substantial, but nary 100%.

[Scott Duvall, NDP, Hamilton Mountain, ON]

Do you believe the federal government should provide funding specifically for civil legal aid, as it does for criminal legal aid, so that there is no political interference?

[Mark Benton]

I think it's important that in Canada we have high levels of consistency in our justice system, and legal aid is an important component of that.

In Canada, we have a standard framework for what judges are paid. We do a number of things that make sense in the scheme of things, but around legal aid there's a much higher level of diversity—a troubling level—than you see in other social services in Canada.

What I'm saying is that I believe there are important strategic issues in justice that need to be addressed, and the federal government has a role in that. It's not just about legal aid, but legal aid is a tool to that end, Mr. Duvall.

[Scott Duvall, NDP, Hamilton Mountain, ON]

Okay.

I have just one last question, and I thank you for the time.

I guess where I'm going is that there should be a national strategy of what funding should be allowed, instead of a political provincial one, case by case. If the province is going to cut funding for people who need representation for civil matters, what happens to all the other cases? Do you just say I ran out of funding and there's no representation?

[Mark Benton]

One of the things that happens is that you get an awful lot of people in court without lawyers and with serious legal problems that go unresolved, and that tends to push up health and social service costs. There's quite a bit of social science in that area right now.

Mr. Duvall, at the risk of going too far into detail, one of the things that the Association of Legal Aid Plans of Canada and the Canadian Bar Association have done, as a collaboration, is to come up with seven benchmarks for legal aid that describe what that broad framework looks like. I will be sure to include that in my brief.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We now go to Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you, Mr. Chair.

Thank you to both of you for your presence and your presentations. They are much appreciated.

Ms. Martel, I will begin with you.

You mentioned the problem with delays in the justice system. We are currently trying to solve the problem mentioned in the Supreme Court decision, the Jordan decision. According to your observations, do criminal trials held in French in Ontario take longer to complete? Is it true that, because of procedural delays, it can take longer to bring a case to trial?

[Andrée-Anne Martel]

Thank you for your question.

In fact, since July 8, 2016, we have had the Supreme Court decision on the Jordan decision, which states that all criminal cases must be heard within 18 months for cases heard in the court of justice and within 30 months for cases heard in the superior court of justice. In Ontario, and throughout Canada, we are currently seeing the effects of the Jordan decision.

Firstly, criminal cases have priority. We are moving forward in this respect to ensure that there are no stays of proceedings, as has happened since the Jordan decision.

Secondly, because many criminal proceedings are dealt with as a priority, civil proceedings are set aside. I will give you a concrete example. I often meet with members of the AJEFO. One of them contacted the court, the Ottawa courthouse, to ask the question directly. He asked whether a motion drafted in French took longer to handle than another in English. The response was that the motion in French takes one month longer to be dealt with.

The answer to your question is that yes, if someone chooses a trial in French, there is indeed an impact on the proceedings, and there are additional delays, additional costs and harm caused by these delays.

[Colin Fraser, Liberal, West Nova, NS]

Thank you for your answer.

Is it also a challenge, in Ontario, to find lawyers who agree to argue a case in French? Is it difficult to find lawyers who have the capacity to speak French and give an opinion in French? Is finding lawyers a challenge?

[Andrée-Anne Martel]

The short answer is yes.

The long answer requires an explanation.

Lawyers who speak French, who would be able to practise law in French and meet their clients' request in the official language of their choice, are not always equipped to serve their clients in French. We are talking about precedents and forms that are not available in French in the common law provinces and territories.

Going back to my example: Émile and Mathieu want to have a will drafted in French. This seems very simple in practice, but when the lawyer does not have access to templates in French, he must translate an English version. The clients will have to pay for this translation.

What we are trying to emphasize in our remarks today is that there is a need for legal tools for legal professionals. These tools will be identified and posted on our portal, Jurisource.ca. The portal was launched in 2013. In the space of a few years, we have grown from about 600 visits per month to 7,000 visits. It is therefore meeting a need.

[Colin Fraser, Liberal, West Nova, NS]

Thank you.

Is there any training for lawyers who speak French as a second language and would like to gain skills and give opinions in French in order to give their clients good representation?

[Andrée-Anne Martel]

I can give you an answer with regard to the province of Ontario. Currently, there are different organizations that offer professional training in French, including our organization, the AJEFO. We offer training in French to ensure that we can respond to this linguistic insecurity, as you mention. We want to ensure that our lawyers, our members, and our legal experts are capable of and comfortable with proceeding in the official language of their choice. Suppose, for example, that I am a lawyer and I work in family law. Ms. Benton, who speaks French and whose language rights I have explained to her, wants a trial in French. Thanks to the professional training offered by the AJEFO, for example, it will be possible to meet her needs.

The AJEFO holds an annual conference, where, for two days, we can answer any questions concerning professionalism and substantive legal issues. We also offer professional training in family mediation and oral arguments workshops. Other organizations in Ontario, such as the Law Society of Upper Canada, the Canadian Bar Association, and the Ontario Bar Association, also offer professional training in French.

[Colin Fraser, Liberal, West Nova, NS]

That's very good. Thank you.

Mr. Benton, I'll turn to you. I appreciate the two recommendations that I highlighted here on my page, which are first of all, to have a standard for the ability to afford a lawyer so that there's a threshold to qualify, and then standard of service, so there's a commonality of services delivered by legal aid across the country. Do you think, though, that those two things could be separated to some extent, whereby, for example, there's a right to counsel, and you therefore could qualify at a lower threshold than if you had to have a lawyer give you advice on a family matter or even a civil matter?

Do you see there being a different standard there, rather than a one-size-fits-all for every service?

[Mark Benton]

Yes. I think one-size-fits-all only works for toques in Canada. I think we need to tailor justice to local circumstance. It's a terrific example. Those large criminal cases, which virtually no Canadians can afford to defend, are often publicly funded for the very reason that you've identified. There are some legal expenses that nobody can afford, but that we need to ensure representation is provided for. There needs to be flexibility in the system.

When I talk about guidelines or standards, we can talk about them in meaningful ways, just the way we talk about poverty in meaningful ways. We know that it costs more to live in Toronto than it does in Kamloops, and we can set standards accordingly.

[Colin Fraser, Liberal, West Nova, NS]

Great. Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Fraser.

Now I think we'll go around the table and see who has any questions, and we'll do our short snappers.

Who has questions?

Mr. Duvall, back to you, and then Mr. Boissonnault, and Ms. Khalid.

[Scott Duvall, NDP, Hamilton Mountain, ON]

Thanks. I have one quick one.

Mr. Benton, you mentioned that the reason there was such a drop of funding out in B.C., from $18 million down to $9 million, was because of a political decision. Would you agree with me that they're saying criminal cases supersede family cases, or family cases are a lower priority?